Case T‑331/14

Mykola Yanovych Azarov

v

Council of the European Union

(Common foreign and security policy — Restrictive measures taken in view of the situation in Ukraine — Freezing of funds — List of persons, entities and bodies covered by the freezing of funds and economic resources — Inclusion of the applicant’s name — Proof that inclusion on the list is justified)

Summary — Judgment of the General Court (Ninth Chamber), 28 January 2016

1.      Actions for annulment — Interest in bringing proceedings — Interest to be assessed at the time at which an action is brought — Action against an act imposing restrictive measures on the applicant — Repeal of the contested act in the course of the proceedings — Declaration that no need to adjudicate — Inadmissibility — Applicant maintaining an interest in obtaining recognition that the contested act unlawful

(Art. 263 TFEU; Council Decision 2014/119/CFSP, as amended by Decisions 2015/143/CFSP and 2015/364/CFSP; Council Regulation No 208/2014, as amended by Regulations 2015/138 and 2015/357)

2.      European Union — Judicial review of the legality of the acts of the institutions — Restrictive measures taken having regard to the situation in Ukraine — Ambit of the review — Proof the measure well-founded — Obligation on the competent EU authority to establish, in the event of challenge, that the grounds held against the persons or entities concerned well-founded

(Charter of Fundamental Rights of the European Union, Art. 47; Council Decision 2014/119/CFSP; Council Regulation No 208/2014)

3.      Common foreign and security policy — Restrictive measures against certain persons and entities in view of the situation in Ukraine — Decision to freeze funds — Judicial review of legality — Scope — Provision of general scope concerning an individual restrictive measure — Included

(Art. 29 TEU; Art. 275, second para., TFEU; Council Decision 2014/119/CFSP, Art. 1(1), as amended by Decision 2015/143/CFSP)

4.      Judicial proceedings — Measures repealing and replacing the contested measure in the course of proceedings — Application to amend pleas for annulment formulated in the course of the proceedings — Person concerned not affected directly and individually — Inadmissibility

(Council Decision 2014/119/CFSP, as amended by Decision 2015/143/CFSP; Council Regulation No 208/2014, as amended by Regulation No 2015/138)

1.      In an annulment action, an applicant’s interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it.

In the case of an application for annulment of acts of the Council entering the name of the applicant on a list of persons covered by restrictive measures taken with regard to the situation in Ukraine, the fact that those acts are no longer in force at the time the Court decision is given, since they have been amended as regards the applicant, cannot be equated with annulment by the Court of acts adopted initially, in so far as that amendment does not amount to recognition of the illegality of those acts. The applicant thus retains an interest in bringing an action, arising from the fact that recognition of the illegality of the contested acts may provide a foundation for a subsequent action for compensation in respect of the damage suffered because of those acts during the period of their application.

(see paras 27, 30, 31)

2.      Although the Council has a broad discretion as regards the general criteria to be taken into consideration for the purpose of adopting restrictive measures, the effectiveness of the judicial review guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to include or to maintain a person’s name on the list of persons subject to restrictive measures, the Courts of the European Union are to ensure that that decision, which affects that person individually, is taken on a sufficiently solid factual basis. That entails a verification of the factual allegations in the summary of reasons underpinning that decision, with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, are substantiated by sufficiently specific and concrete evidence.

In that regard, in order to enter the name of a person on the list of persons subject to restrictive measures, on the ground that that person has been identified as being responsible for the misappropriation of State funds, the Council must have a sufficiently solid factual basis, namely information regarding the acts or conduct specifically imputed to that person.

Moreover, it is for the competent European Union authority to establish, in the event of challenge, that the reasons relied on against the person concerned are well-founded, and not the task of that person to adduce evidence of the negative, that those reasons are not well-founded.

(see paras 43, 54, 56)

3.      The second paragraph of Article 275 TFEU is directed at all Council decisions relating to restrictive measures against natural or legal persons, falling within Chapter 2 of Title V of the EU Treaty, without making any distinction on the basis of decisions of general application or individual decisions. In particular, it does not preclude the possibility of challenging, in a statement modifying the form of order sought, the legality of a general provision, in support of an action for annulment brought against an individual restrictive measure.

(see para. 62)

4.      See the text of the decision.

(see paras 64, 65)